Timothy
Baldwin’s “A CONCURRING OPINION FOR SECESSION (Part
12)” continues his argument that a State’s supposed
“right to secede” from the Union does not depend upon any
procedures within the Constitution (such as the process for amendment
in Article V), and then closes with a ringing rhetorical defense of
his position. Although I have already addressed most of Mr. Baldwin’s
legal contentions in earlier parts of my response to his commentaries,
his twelfth article does raise a few issues that merit close consideration.

1.
Mr. Baldwin poses the question, “Are you to argue that three-fourths
of the states [through the process of amending the Constitution] have
the implied power to cause detriment to the remaining one-fourth of
the states without any remedy being left to the remaining one-fourth
of the states?” The answer is that Article V grants explicit (not
merely implied) power for three-fourths of the States to enact amendments,
even when vehemently opposed by the remaining one-fourth of the States—opposition
from which, doubtlessly, would reflect their determination that the
amendment in issue would “cause [them] detriment”. That,
however, is the “compact” to which all of the States
voluntarily assented; and, as with any “compact”, the parties
must take the bitter with the sweet. Is this not exactly what happens,
too, in Congress—and even more pointedly there, in that mere majorities
in the House and Senate can enact legislation that will “cause
detriment” to those in the minority? But if the legislation is
constitutional, do those in the minority have a “right”
to complain, in the sense that those in the majority have a “duty”
to repeal the offensive legislation? And surely no one doubts that “enforcement
[of such laws of the United States] is no invasion of state sovereignty.
No law can be, which the people of the States have, by the Constitution,
empowered Congress to enact.” Ex parte Virginia, 100 U.S. 339,
346 (1880).

Mr.
Baldwin also asks, “Did not our constitution attempt to limit
all vestiges of a tyrannical majority?” The correct answer to
this question is, “The Constitution does not countenance tyranny
of any kind; but in some of its procedures it does allow for ‘majority
rule’, usually by simple majorities and in extraordinary cases
by super-majorities.” Let us, after all, recall what “tyranny”
actually is. It is not synonymous with majority rule, as applied in
a legislature enacting constitutional laws according to constitutional
procedures. Rather, as John Locke defined it, “Tyranny is
the exercise of Power beyond Right, which no Body can have a Right
to. And this is making use of Power any one has in his hands; not for
the good of those, who are under it, but for his own private separate
Advantage”. An Essay Concerning the True Original, Extent,
and End of Civil Government (1698), Chapter XVIII, § 199.
As its Preamble attests, the Constitution requires that the General
Government “provide for the common defence” and
“promote the general Welfare” in all of its actions—and
if it tries to do so in good faith, then, by definition, those acts
are not “tyranny”, notwithstanding that (as is almost always
the case) even the most scrupulous regard for “the common
defence” and “the general Welfare” cannot
be expected to leave everyone in the country equally safe and well off.

2.
Mr. Baldwin then contends that,

[i]f
the argument goes that the amendment clause [that is, Article V] put
all of the ratifying states on notice that secession could only be accomplished
through three-fourths of the states, then the remaining one-fourth of
the states would most certainly argue that the amendment clause never
admits the right of three-fourth of the states to deny them the use
and benefit of the (permanent and perpetual) union itself, but only
that the terms of the constitution could be changed—not the parties.

Now,
Mr. Baldwin is correct that the process of amendment cannot be employed
“to deny [any of the States] the use and benefit of the (permanent
and perpetual) union itself”. We know that, though, not because
Mr. Baldwin says so, but because Article V says so—namely, “that
no State, without its Consent, shall be deprived of its equal Suffrage
in the Senate”. Observe that, if this restriction did not appear,
then, because of the otherwise unlimited nature of Article V, an amendment
of the Constitution could “deprive[ a State] of its equal
Suffrage in the Senate”, and possibly of any “Suffrage”
there, in effect expelling the State from the Union (or at least denying
it equality of membership in the federal system, which in practice could
amount to the same thing). Also observe that, “with[
] its Consent”, a State may be “deprived of its
equal Suffrage in the Senate” under Article V. And exactly how
would that come about? Self-evidently, by a State’s affirmatively
seeking such a result through the process of amendment. But a State
would never affirmatively seek to surrender the benefit of her equal
suffrage in the Senate, yet remain subject to all the burdens of the
Constitution. So, if a State would consent to be “deprived of
its equal Suffrage in the Senate”, she would do so only as the
consequence of an amendment allowing her to leave the Union entirely,
giving up the benefits but also being relieved of the burdens at the
same time. Inasmuch as Article V plainly contemplates the possibility
that, under some circumstances, a State would consent to give
up her “equal suffrage in the Senate”, Article V plainly
contemplates as well that a State could choose to leave the
Union (or “secede”) by the process of amendment.
Mr. Baldwin, of course, claims that “only * * * the terms of the
constitution c[an] be changed—not the parties”. But on what
legal authority he bottoms this contention he does not say. (In the
common law of contracts, for example, this result could be had by a
“rescission” or a “release”; so why the same
principle could not apply to the constitutional “compact”
through an “amendment” is not clear.) And even if he could
identify some general legal rule to his purpose, he would still have
to prove that it is capable of overriding Article V.

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3.
Mr. Baldwin then asks “Why Not Require Three Fourths of the
States to Correct State Action, As Opposed to Federal? * * * [W]hen
the suggestion is made that an individual state has the right to resist
the federal government until and unless three fourths of the states
declare otherwise through ratification [of a constitutional amendment],
they reject it out of hand.” I have no idea who the “they”
are to whom Mr. Baldwin refers. But I know that I do not “reject
* * * out of hand” his contention. For example, with respect to
the unconstitutional and economically destructive Federal Reserve System
which rogue public officials in the General Government have foisted
on America, the States certainly do have “the right to resist”—in
particular, by selecting for their own use an economically sound and
constitutional alternative currency in preference to Federal Reserve
Notes. The States’ constitutional right to do so has been upheld
even by the Supreme Court. Lane County v. Oregon, 74 U.S. (7
Wallace) 71 (1869); Hagar v. Reclamation District No. 108,
111 U.S. 701 (1884). So, this is an area in which three-fourths of the
States would be required to support a constitutional amendment to prevent
such resistance by individual States.

4. Finally, Mr. Baldwin complains that “[t]h[e] right of secession
would prove to be too inconvenient, unionists say, and thus it should
be ‘unconstitutional’”. Again, I have no idea who
the unnamed “unionists” are to whom Mr. Baldwin refers.
But I know that I find “secession”, not to be unconstitutional
because it is “too inconvenient”, but to be too inconvenient
because it is unconstitutional. If proponents of “States’
rights” and “individual rights” really want to oppose
usurpation and tyranny flowing from rogue public officials in the General
Government (and all too often from rogue officials in the States, as
well), they must do so without invoking purported “remedies”
that themselves smack of usurpation or other forms of illegality. In
addition, they must propose remedies that, as a practical matter, have
a reasonable chance to succeed. Even in the hands of one of the greatest
warrior races known to history, kamikaze tactics proved unavailing.

“Secession”
as most “secessionists” define that term cannot be justified
under the Constitution. It can be justified in principle under the Declaration
of Independence, but only when the conditions precedent required
by the Declaration of Independence obtain. And even then it can
be justified in practice only if a “seceding” State is fully
prepared, before she “secedes”, to deal with all of the
political, economic, and social consequences of her action. What does
this entail?

Assume
for purposes of argument that both the people and their government in
State X want to “secede” from the Union. (That assumption
itself requires an heroic act of faith and suspension of disbelief;
but Mr. Baldwin’s enthusiasm for the idea and eloquent support
of it in his commentaries suggest that it might happen.) Now
what must State X do? I suggest the following sequence:

(i)
State X seeks a constitutional amendment permitting her “secession”
from the Union. If she succeeds, her problem is solved. If she fails,
she at least has added an important “Fact[ ] submitted to a candid
world” (as the Declaration of Independence put it) in support
of the conclusion that “secession” is her only alternative,
by proving that Congress and the rest of the States are deaf to her
legitimate complaints.

(ii)
At the same time, State X seeks a determination by the Supreme Court
that she may “secede” on the basis of some legal theory
that does not involve amendment of the Constitution. Again, if she succeeds,
her problem is solved; whereas, if she fails, she at least has added
another important “Fact[ ] submitted to a candid world”
in support of her position, by proving that resort to the Judiciary
is bootless.

(iii)
While steps (i) and (ii) are going forward, State X adopts an economically
sound alternative currency and revitalizes her Militia—both of
which measures she is entitled to take right now, without anyone’s
permission. If State X succeeds in these measures, she may discover
that “secession” is unnecessary, because the example she
sets may galvanize other States into similar action, totally changing
the balance of power between the States and rogue public officials in
the General Government. In any event, State X will be prepared to deal
with the vicissitudes of “secession” in regard to her own
economy and “homeland security” if “secession”
eventually does become necessary.

(iv)
At all times, State X broadcasts to Americans throughout the country
the basis for her desire to “secede” from an oppressive
Union, the legal grounds on which she contends that she is entitled
to “secede”, and her unsuccessful attempts to exhaust all
of her political and judicial remedies, so that the prudence and justice
of her cause will be made manifest everywhere.

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If
a State is willing to take at least these steps, and succeeds in doing
so, she may never have to attempt to “secede”. And if a
State is unwilling or unable to take at least these steps, she will
never have a ghost of chance to succeed in “seceding”. Audacity
can sometimes overcome adversity; but imprudence never can.

Edwin Vieira, Jr., holds four
degrees from Harvard: A.B. (Harvard College), A.M. and Ph.D. (Harvard
Graduate School of Arts and Sciences), and J.D. (Harvard Law School).

For more than thirty years he has
practiced law, with emphasis on constitutional issues. In the Supreme
Court of the United States he successfully argued or briefed the cases
leading to the landmark decisions Abood v. Detroit Board of Education,
Chicago Teachers Union v. Hudson, and Communications Workers of America
v. Beck, which established constitutional and statutory limitations on
the uses to which labor unions, in both the private and the public sectors,
may apply fees extracted from nonunion workers as a condition of their
employment.

He has written numerous monographs
and articles in scholarly journals, and lectured throughout the county.
His most recent work on money and banking is the two-volume Pieces
of Eight: The Monetary Powers and Disabilities of the United States
Constitution (2002), the most comprehensive study in existence of American
monetary law and history viewed from a constitutional perspective. www.piecesofeight.us

He is also the co-author (under
a nom de plume) of the political novel CRA$HMAKER:
A Federal Affaire (2000), a not-so-fictional story of an engineered crash
of the Federal Reserve System, and the political upheaval it causes. www.crashmaker.com